Robert Benjamin Franks v. State ( 2019 )

Opinion issued November 26, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00055-CR
———————————
ROBERT BENJAMIN FRANKS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 22nd District Court
Hays County, Texas
Trial Court Case No. CR-16-0792
MEMORANDUM OPINION
Appellant, Robert Benjamin Franks, was found guilty by a jury of two counts
of continuous aggravated sexual abuse involving two children; nine counts of
aggravated sexual assault of a child; and six counts of indecency with a child. See
TEX. PENAL CODE §§ 21.02 (Continuous Sexual Abuse of a Young Child or
Children); 22.021(a)(1)(B) (Aggravated Sexual Assault); 21.11 (Indecency with a
Child). After a punishment hearing, the jury sentenced appellant to life
imprisonment for each of the two counts of continuous sexual abuse of a child
(Counts I and II); ninety-nine years’ imprisonment for each of the nine counts of
aggravated sexual assault (Counts III-V, VIII-X, and XIII-XV); and twenty years’
imprisonment for each of the six counts of indecency with a child. Counts I and II
are not parole eligible. See TEX. GOVT. CODE § 508.145(a). The trial court sentenced
appellant in accordance with the jury’s verdict and ordered that each count’s
sentence run consecutively to the other counts. Appellant timely filed a notice of
appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw, along
with an Anders brief stating that the record presents no reversible error and that,
therefore, the appeal is without merit and is frivolous. See Anders v. California, 386
U.S. 738 (1967). Counsel’s brief meets the Anders requirements by presenting a
professional evaluation of the record and supplying this Court with references to the
record and legal authority. See id. at 744; see also High v. State, 573 S.W.2d 807,
812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the
record and that he is unable to advance any grounds of error that warrant reversal.
See Anders, 386 U.S. at 744; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
2
Appellant’s counsel certified that he delivered a copy of the motion to
withdraw and Anders brief to appellant and informed appellant of his right to file a
pro se response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).
Furthermore, counsel certified that he sent appellant the form motion for pro se
access to the records for his response. See Kelly v. State, 436 S.W.3d 313, 322 (Tex.
Crim. App. 2014). This Court granted appellant’s pro se motion to access the
appellate record and a copy of the record was sent to appellant. See id. Appellant
filed a pro se response.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744 (emphasizing that reviewing court—and not counsel—determines, after full
examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine
whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–
28 (Tex. Crim. App. 2005) (reviewing court is not to address merits of each claim
raised in Anders brief or pro se response after determining there are no arguable
grounds for review); Mitchell, 193 S.W.3d at 155.1 An appellant may challenge a
1
Counsel’s Anders brief identifies potential insufficiency of evidence
arguments for three counts of aggravated sexual assault (Counts IV, IX, and
XIV) and three counts of indecency with a child (Counts VI, XI, and XVI).
3
holding that there are no arguable grounds for appeal by filing a petition for
discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178
S.W.3d at 827 n.6.
Accordingly, we affirm the judgments of the trial court and grant counsel’s
motion to withdraw.2 See TEX. R. APP. P. 43.2(a). Attorney Gregory Sherwood must
immediately send the required notice and file a copy of that notice with the Clerk of
this Court. See TEX. R. APP. P. 6.5(c). We dismiss any other pending motions as
moot.
Counsel states the following in concluding that any argument as to the
sufficiency of the evidence for these counts would be frivolous because
reversal of the sentences for these counts would not have any practical effect
on appellant’s incarceration:
However, any argument about whether the evidence is
insufficient on these six counts just listed is moot because, while
it would reduce the length of all the consecutive sentences (which
greatly exceed a human’s life span), it would not increase
appellant’s chances of parole eligibility, because the consecutive
life sentences for Counts I and II are not parole eligible. Thus,
even if this court were to reverse those six counts, the length of
appellant’s incarceration would not change as a practical matter
because he is not eligible for parole on his two life consecutive
sentences for Counts I and II.
We disagree that an insufficiency argument as to these counts is rendered
moot or frivolous by appellant’s separate consecutive life sentences without
parole for Counts I and II. However, based upon our own independent review
of the record, we conclude that an appeal of these counts would be frivolous
because the record contains evidentiary support for these convictions.
2
Appointed counsel still has a duty to inform appellant of the result of this
appeal and that he may, on his own, pursue discretionary review in the Texas
Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 826–27.
4
PER CURIAM
Panel consists of Justices Keyes, Goodman, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
5